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Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 4-2 Members

Division 135 Introduction

135-1   What this Part is about

This Part deals with membership of an Aboriginal and Torres Strait Islander corporation.

Division 138 deals with the meaning of member of an Aboriginal and Torres Strait Islander corporation.

Subdivision 141-B deals with various rules that are imposed on an Aboriginal and Torres Strait Islander corporation concerning membership.

Subdivision 141-C imposes 1 eligibility requirement for membership but a corporation may impose other such requirements.

Division 144 deals with how a person becomes a member.

Division 147 deals with member obligations.

Division 150 deals with how a person ceases to be member.

Division 153 provides for different classes of members.



 

Division 138 Who is a member of an Aboriginal and Torres Strait Islander corporation?

138-1   Meaning of member

             (1)  A person is a member of an Aboriginal and Torres Strait Islander corporation if the person:

                     (a)  is a member of the corporation on its registration; or

                     (b)  agrees to become a member of the corporation after its registration and his or her name is entered on the register of members.

Note:          Section 180-5 requires the corporation to enter the names and addresses of all of its members on the register of members.

             (2)  A person referred to in paragraph (1)(b) becomes a member when his or her name is entered on the register of members.

Note:          Under section 42-10, a person who is specified in the application for registration of an Aboriginal and Torres Strait Islander corporation as a member of the corporation becomes a member on registration of the corporation.



 

Division 141 Membership of Aboriginal and Torres Strait Islander corporations

Subdivision 141-A Introduction

141-1   Overview

             (1)  There are ongoing requirements relating to the membership of an Aboriginal and Torres Strait Islander corporation that are imposed on the corporation (see Subdivision 141-B).

             (2)  These requirements have implications for the eligibility of persons for membership of Aboriginal and Torres Strait Islander corporations (see section 141-20).

             (3)  In addition, an Aboriginal and Torres Strait Islander corporation may impose additional eligibility requirements for membership of the corporation (see section 141-25).

Subdivision 141-B Ongoing requirements relating to membership that are imposed on an Aboriginal and Torres Strait Islander corporation

141-5   Minimum number of members requirement

                   An Aboriginal and Torres Strait Islander corporation must meet the minimum number of members requirement set out in section 77-5 at all times.

Note:          Section 26-1 also requires the minimum number of members requirement (explained in section 29-1) to be met at registration of the corporation.

141-10   Indigeneity requirement

             (1)  An Aboriginal and Torres Strait Islander corporation must meet the Indigeneity requirement set out in section 29-5 at all times.

Note:          Section 26-1 also requires the Indigeneity requirement (explained in section 29-5) to be met at registration of the corporation.

             (2)  However, the corporation’s constitution may provide that the corporation must have a number or percentage of persons who are Aboriginal and Torres Strait Islander persons that is higher than the number or percentage required in the Indigeneity requirement.

             (3)  An Aboriginal and Torres Strait Islander corporation that does increase the number or percentage of persons that are required to be Aboriginal and Torres Strait Islander persons is not in breach of subsection (1) only because that increased number or percentage is not attained.

141-15   Age of members requirement

             (1)  An Aboriginal and Torres Strait Islander corporation must meet the age of members requirement set out in section 29-10 at all times.

Note 1:       The requirement is that the members of the corporation be at least 15 years of age.

Note 2:       Section 29-10 also requires the age of members requirement to be met at registration of the corporation.

             (2)  However, the corporation’s constitution may provide that the members of the corporation must be at least of an age that is older than 15 years.

             (3)  An Aboriginal and Torres Strait Islander corporation that does increase the minimum age of members is not in breach of subsection (1) only because some members are younger than that increased minimum age.

Subdivision 141-C A person’s eligibility for membership of an Aboriginal and Torres Strait Islander corporation

141-20   Eligibility for membership

                   An individual who is at least 15 years of age is eligible for membership of an Aboriginal and Torres Strait Islander corporation.

141-25   Corporation may have other eligibility requirements for membership

                   The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other eligibility requirements for membership of the corporation.



 

Division 144 How to become a member of an Aboriginal and Torres Strait Islander corporation

144-1   How does a person become a member?

                   A person becomes a member of an Aboriginal and Torres Strait Islander corporation if:

                     (a)  the person applies as provided for in section 144-5; and

                     (b)  the person is eligible for membership; and

                     (c)  the application is accepted as provided for in section 144-10; and

                     (d)  the person is entered on the register of members (see subsection 144-10(5)).

144-5   Application to corporation

             (1)  A person (the applicant ) who wants to become a member of an Aboriginal and Torres Strait Islander corporation must apply to the corporation.

Application to be in writing (replaceable rule—see section 60-1)

             (2)  The application must be in writing.

144-10   Determination of applications for membership

             (1)  The directors are responsible for deciding membership applications in respect of an Aboriginal and Torres Strait Islander corporation.

             (2)  The directors must not accept an application for membership of the corporation unless:

                     (a)  the applicant applies for membership in the required manner; and

                     (b)  the applicant meets the eligibility for membership requirements of the corporation.

Discretion to refuse to accept membership application

             (3)  The directors may refuse to accept the membership application even if paragraphs (2)(a) and (b) are complied with.

Circumstances when application not to be accepted

             (4)  However, the directors must not accept the application if, by accepting the application, the corporation would be in breach of the requirement in section 141-10 (to at all times be complying with the Indigeneity requirement).

If application accepted, entry on the register of members

             (5)  If the directors accept the application, the corporation must enter the member on the register of members. Subject to subsection (8), the corporation must do so within 14 days of the acceptance.

Penalty:  5 penalty units.

Corporation to give notice if application not accepted

             (6)  If the directors decide not to accept the application, the corporation must notify the person of the decision and the reasons for it.

Notice to be in writing (replaceable rule—see section 60-1)

             (7)  The notice must be in writing.

No admission to membership before a general meeting has been held

             (8)  If:

                     (a)  the applicant applies for membership after a notice has been given for the holding of a general meeting; and

                     (b)  the meeting has not been held at the time that the directors consider the application;

then the corporation must not enter the person on the register of members until after the general meeting has been held.

Penalty:  5 penalty units.

Note:          An application may be made to exempt the corporation from the requirement of this subsection (see section 187-5).

             (9)  An offence against subsection (5) or (8) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

144-15   Fees for membership and being an observer

             (1)  Unless an Aboriginal and Torres Strait Islander corporation’s constitution provides otherwise, the corporation must not impose fees in respect of membership of the corporation or in respect of being an observer of the corporation.

Note:          Section 158-5 deals with observers.

             (2)  If the corporation’s constitution provides for the charging of such fees, the fees, and the amount of the fees, are to be determined by the corporation by resolution in general meeting.



 

Division 147 Obligations of members

147-1   Obligation to contribute on winding up

                   If an Aboriginal and Torres Strait Islander corporation’s constitution provides that the members must contribute to the property of the corporation on winding up then the members must so contribute. Otherwise, the members are not liable to contribute.

147-5   Corporation may impose other member obligations

                   The constitution of an Aboriginal and Torres Strait Islander corporation may provide for other obligations that attach to membership of the corporation.

147-10   Liability of corporation members

If application for registration says members are not to be liable for debts of the body

             (1)  If the application for registration of an Aboriginal and Torres Strait Islander corporation states that people who are members and former members are not to be liable to contribute towards the payment of the debts and liabilities of the corporation, the members and former members are not liable so to contribute.

If application for registration says members are to be liable for debts of the body

             (2)  If the application for registration states that people who are members and former members are to be liable to contribute towards the payment of the debts and liabilities of the corporation on a particular basis, the members and former members are liable so to contribute on that basis.



 

Division 150 How does a person cease to be a member of an Aboriginal and Torres Strait Islander corporation?

Subdivision 150-A General

150-1   Cessation of membership

Ways a membership ceases

             (1)  This Division deals with the various ways in which a person ceases to be a member of an Aboriginal and Torres Strait Islander corporation. The various ways are:

                     (a)  if the person resigns as a member of the corporation (see Subdivision 150-B); or

                     (b)  if the person dies; or

                     (c)  if the person’s membership of the corporation is cancelled (see Subdivision 150-C); or

                     (d)  if the member is a body corporate and the body corporate ceases to exist.

When a person ceases to be a member

             (2)  A person ceases to be a member when the member’s name is removed from the register of members as a current member of the corporation .

Subdivision 150-B Resignation of membership

150-10   Resignation

Resignation to be given to corporation

             (1)  A member of an Aboriginal and Torres Strait Islander corporation may resign as a member by notice given to the corporation.

Notice to be in writing (replaceable rule—see section 60-1)

             (2)  The notice must be in writing.

Register to be amended within 14 days of resignation

             (3)  Within 14 days after receiving the notice, the corporation must remove the member’s name from the register of members as a current member of the corporation.

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

Subdivision 150-C Cancellation of membership

150-15   General

Eligibility for membership etc.

             (1)  Section 150-20 is a replaceable rule that provides a model for the cancellation of membership on the grounds of ineligibility for membership or failure to pay fees.

Note:          As a replaceable rule, section 150-20 can be modified or replaced by an Aboriginal and Torres Strait Islander corporation and replaced in whole or in part by a provision that suits the corporation’s particular circumstances (subject to the internal governance rules requirements).

Specific grounds for cancellation of membership

             (2)  Sections 150-25, 150-30 and 150-35 deal with cancellation of membership on the grounds that:

                     (a)  the member is uncontactable (see section 150-25); and

                     (b)  the member is not an Aboriginal and Torres Strait Islander person (see section 150-30); and

                     (c)  the member has misbehaved (see section 150-35).

If a membership is to be cancelled on any of the grounds set out in these sections, the only way the membership may be cancelled is as provided for in the applicable section.

Register to be amended within 14 days of membership being cancelled

             (3)  Within 14 days after the cancellation of membership, the corporation must remove the member’s name from the register of members as a current member of the corporation.

Penalty:  5 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

150-20   Member not eligible for membership etc. (replaceable rule—see section 60-1)

Cancellation of membership if member is not eligible etc.

             (1)  The directors of an Aboriginal and Torres Strait Islander corporation may, by resolution, cancel the membership of a member of the corporation if:

                     (a)  either:

                              (i)  the member is not eligible for membership; or

                             (ii)  the member has ceased to be eligible for membership of the corporation; or

                     (b)  the member has not paid his or her membership fees (if any).

Member to be given notice

             (2)  Before cancelling the membership, the directors must give the member notice in writing:

                     (a)  stating that the directors intend to cancel the membership for the reasons specified in the notice; and

                     (b)  stating that the member has 14 days to object to the cancellation of the membership; and

                     (c)  stating that the objection must be:

                              (i)  in writing; and

                             (ii)  given to the corporation within the period of 14 days from the day the notice is given.

 

If member does not object

             (4)  If the member does not object as provided for in paragraph (2)(c), the directors must cancel the membership.

If member does object

             (5)  If the member does object as provided for in paragraph (2)(c):

                     (a)  the directors must not cancel the membership; and

                     (b)  only the corporation by resolution in general meeting may cancel the membership.

Notice of resolution to be given

             (6)  If the membership is cancelled, the directors must give the member a copy of the resolution (being either the resolution of the directors or the resolution of the general meeting) as soon as practicable after the resolution has been passed.

150-25   Member not contactable

Operation of section

             (1)  This section operates despite section 150-20 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Note:          An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

Membership may be cancelled if not contactable

             (2)  If the membership of a member of an Aboriginal and Torres Strait Islander corporation is to be cancelled on the ground that the member is not contactable, the membership may only be cancelled on that ground if the cancellation is effected in the manner and circumstances set out in subsection (3).

Manner and circumstances

             (3)  The membership may be cancelled by special resolution in general meeting if:

                     (a)  the corporation has not been able to contact the member at the address for the member that is entered on the register of members; and

                     (b)  the corporation has not been able to contact that person at that address for a continuous period of 2 years prior to the meeting; and

                     (c)  the corporation has made 2 or more reasonable attempts to otherwise contact the member during that 2 year period but has been unable to.

Notice

             (4)  If the corporation does so cancel the membership, the directors must send the member a copy of the resolution at the last known address of the member, as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

150-30   Member is not an Aboriginal and Torres Strait Islander person

Operation of section

             (1)  This section operates despite section 150-20 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Note:          An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

 

Membership may be cancelled if not an Aboriginal and Torres Strait Islander person

             (2)  If it is a requirement for eligibility for membership of an Aboriginal and Torres Strait Islander corporation that a member be an Aboriginal and Torres Strait Islander person, a member’s membership may only be cancelled on the ground that the person is not such a person if the cancellation is effected in the manner and circumstance set out in subsection (3).

Manner and circumstances

             (3)  The corporation, by special resolution in general meeting, may cancel the membership of the member if the general meeting is satisfied that the member is not an Aboriginal and Torres Strait Islander person.

Notice

             (4)  If the corporation does so cancel the membership, the directors must give the member a copy of the resolution as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

150-35   Member misbehaves

Operation of section

             (1)  This section operates despite section 150-20 or any provision of an Aboriginal and Torres Strait Islander corporation’s constitution.

Note:          An application may be made to exempt the corporation, or the directors of the corporation, from the requirements of this section (see section 187-5).

 

Membership may be cancelled if member misbehaves

             (2)  If the membership of a member of an Aboriginal and Torres Strait Islander corporation is to be cancelled on the grounds that the member has misbehaved, the membership may only be cancelled on that ground if the cancellation is affected in the manner and circumstance provided for in subsection (3).

Manner and circumstances

             (3)  The corporation may cancel the membership by special resolution in general meeting if the general meeting is satisfied that member has behaved in a manner that significantly interfered with the operation of the corporation or of corporation meetings.

Notice

             (4)  If the corporation does so cancel the membership, the directors must give the member a copy of the resolution as soon as practicable after the resolution has been passed.

Penalty:  5 penalty units.



 

Division 153 Can there be different classes of members?

153-1   Different classes of members

             (1)  An Aboriginal and Torres Strait Islander corporation’s constitution may provide that the corporation has different classes of members.

             (2)  The corporation’s constitution may provide that different rights may attach to different classes of membership.

Note:          The rule under section 201-115 that, subject to those different rights, each member has 1 vote on a show of hands and, on a poll, 1 vote is a replaceable rule.